Proposed criminal DNA rule.

The Florida Supreme Court on its own motion has amended Florida Rules of Criminal Procedure 3.170 and 3.172 on an emergency basis to ensure consistency between the rules and section 925.12, Florida Statutes (2006), which requires courts to inquire into the existence of physical evidence containing DNA that could exonerate a defendant prior to accepting a plea of guilty or nolo contendere to a felony. See In re: Amendments to Fla. R. Crim. P. 3.170 & 3.172, No. SC06-1739 (Fla. Sept. 21, 2006). The court invites all interested persons to comment on the proposed amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. The Florida Bar Criminal Procedure Rules Committee is specifically invited to file comments. An original and nine paper copies of all comments must be filed with the Court on or before November 20, 2006, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with the Court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.170 AND 3.172, CASE NO. SC06-1739

RULE 3.170. PLEAS

(a) - (j) [No change]

(k) Responsibility of Court on Pleas.

(1) No plea of guilty or nolo contendere shall be accepted by a court without the court first determining, in open court, with means of recording the proceedings stenographically or mechanically, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness and that there is a factual basis for the plea of guilty.

(2) No plea of guilty or nolo contendere to a felony shall be accepted by a court without the court first inquiring of the defendant and of counsel for the defendant and the state as to physical evidence containing DNA known to exist that could exonerate the defendant. If no physical evidence containing DNA that could exonerate the defendant is known to exist, the court may proceed with consideration of accepting the plea. If physical evidence containing DNA that could exonerate the defendant is known to exist, the court may postpone the proceeding on the defendant's behalf and order DNA testing upon motion of counsel specifying the physical evidence to be tested.

(3) A complete record of the proceedings at which a defendant pleads shall be kept by the court.

l) [No change]

RULE 3.172 ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA

(a) - (c) [No change]

(d) Inquiry Concerning DNA Evidence. Before accepting a plea of guilty or nolo contendere to a felony, the trial judge must inquire of the defendant and of counsel for the defendant and the state as to physical evidence containing DNA known to exist that could exonerate the defendant. The judge must inquire into the following:

(1) whether counsel for the defense has reviewed the discovery disclosed by the state and whether such discovery included a listing or description of physical items of evidence;

(2) whether the nature of the evidence against the defendant disclosed through discovery has been reviewed with the defendant;

(3) whether the defendant or counsel for the defendant is aware of any physical evidence disclosed by the state for which DNA testing may exonerate the defendant; and

(4) whether the state is aware of any physical evidence for which DNA testing may exonerate the defendant.

(e) Acknowledgment by Defendant. Before the trial judge accepts a guilty or nolo contendere plea, the judge must determine that the defendant either (1) acknowledges his or her guilt or (2) acknowledges that he or she feels the plea to be in his or her best interest, while maintaining his or her innocence.

(ef) Proceedings of Record. The proceedings at which a defendant pleads guilty or nolo contendere shall be of record.

(fg) Withdrawal of Plea Offer or Negotiation. No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.

(gh) Withdrawal of Plea When Judge Does Not Concur. If the trial judge does not concur in a tendered plea of guilty or nolo contendere arising from negotiations, the plea may be withdrawn.

(hi) Evidence. Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

(ij) Prejudice. Failure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice.